Citation Nr: 0115795
Decision Date: 06/08/01 Archive Date: 06/18/01
DOCKET NO. 00-00 302 ) DATE
)
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On appeal from the
Department of Veterans Affairs Regional Office in Reno,
Nevada
THE ISSUES
1. Entitlement to an increased rating for service-connected
status post Mumford procedures, left shoulder, currently
rated as 10 percent disabling.
2. Whether new and material evidence has been submitted to
reopen a claim for entitlement to service connection for a
left ankle disability.
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESS AT HEARINGS ON APPEAL
The veteran
ATTORNEY FOR THE BOARD
David S. Nelson, Associate Counsel
INTRODUCTION
The veteran had more than 16 years of active duty service and
was placed on the temporary disability retired list in March
1993.
This matter comes before the Board of Veterans' Appeals (BVA
or Board) on appeal from an August 1999 rating decision by
the Reno, Nevada, Regional Office (RO) of the Department of
Veterans Affairs (VA).
In April 2001 the veteran testified before the undersigned
member of the Board at a hearing in Washington, D.C. At the
Board hearing, the veteran requested that the record be held
open an additional 30 days in order to submit additional
medical records. Such records were submitted and the veteran
has waived initial RO consideration of this evidence.
At his April 2001 Board hearing the veteran raised the issue
of entitlement to service connection for a thoracic spine
disability. This matter is referred to the RO for
appropriate action.
FINDINGS OF FACT
1. The veteran's left shoulder disability is manifested by
complaints of continuous pain and by pain with movement of
the left arm at or above the shoulder level; fibrous union of
the humerus has not been shown.
2. By rating decision in October 1996, the RO denied
entitlement to service connection for a left ankle
disability; a notice of disagreement was not received to
initiate an appeal from the October 1996 rating decision.
3. Certain items of evidence received subsequent to the
October 1996 rating decision are so significant that they
must be reviewed to fairly decide the merits of the veteran's
claim.
CONCLUSIONS OF LAW
1. The schedular criteria for entitlement to a disability
rating of 20 percent for the veteran's service-connected
status post Mumford procedures, left shoulder, have been met.
38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 4.7,
4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5201, 5202, 5203
(2000).
2. The October 1996 rating decision is final. 38 U.S.C.A.
§ 7105(c) (West 1991).
3. Evidence received since the October 1996 rating decision
is new and material, and the veteran's claim of entitlement
to service connection for a left ankle disability has been
reopened. 38 U.S.C.A. § 5108 (West 1991); 38 C.F.R.
§ 3.156(a) (2000).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
On November 9, 2000, the Veterans Claims Assistance Act of
2000 (VCAA) became law. The VCAA applies to all pending
claims for VA benefits and provides the VA shall make
reasonable efforts to assist the claimant in obtaining
evidence necessary to substantiate the claimant's claim.
Veterans Claims Assistance Act of 2000, Pub. L. No. 106-475,
§ 3(a), 114 Stat. 2096, 2097-98 (2000) (to be codified as
amended at 38 U.S.C. § 5103A). After reviewing the claims
file, the Board finds that there has been substantial
compliance with the notice/assistance provisions of the new
legislation. The record includes service medical records,
private medical records, and recent VA treatment records and
examinations. No additional pertinent evidence has been
identified by the veteran. The Board therefore finds that
the record as it stands (on the issue of an increased rating
for a left shoulder disability) is complete and adequate for
appellate review.
I. Increased rating for a left shoulder disability.
Disability ratings are determined by applying the criteria
set forth in the VA's Schedule for Rating Disabilities, which
is based on the average impairment of earning capacity.
Individual disabilities are assigned separate diagnostic
codes. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Where an
increase in an existing disability rating based on
established entitlement to compensation is at issue, the
present level of disability is the primary concern.
Francisco v. Brown, 7 Vet. App. 55, 58 (1994). If two
evaluations are potentially applicable, the higher evaluation
will be assigned if the disability picture more nearly
approximates the criteria required for that rating;
otherwise, the lower evaluation will be assigned. 38 C.F.R.
§ 4.7.
Based on service medical records and a June 1993 VA
examination, the veteran was granted service connection for a
left shoulder disability in a November 1993 rating decision;
the veteran was assigned a 10 percent disability rating that
has remained in effect since that time.
Service medical records indicate that the veteran sustained
hyperextension and abduction injuries to both shoulders in
conjunction with the May 1990 right leg injury. During
service the veteran underwent surgery for subacromial
decompression and resection of the distal clavicle (Mumford
procedure). Service medical records indicate that the
veteran is right-handed.
A June 1993 VA joints examination noted mild deformity of the
left shoulder.
An April 1995 VA X-ray revealed resection of the distal one
third of the left clavicle.
At a March 1999 VA joints examination, the veteran complained
of left shoulder pain. Range of motion of the left shoulder
demonstrated 90 degrees flexion, 80 degrees of abduction, 45
degrees of extension, 20 degrees of external rotation, and
internal rotation to the iliac crest "only." X-rays
revealed an impression of post-surgical changes and signs of
calcific periarthritis. The diagnosis was status post
Mumford procedure and periarthritis with decreased range of
motion.
VA treatment records dated from July 1997 to February 2000
reflect ongoing treatment for shoulder pain.
At the April 2000 RO hearing, the veteran testified that he
had pain and popping with elevation of the left shoulder. He
was unable to perform tasks such as swinging a hammer or
nailing a picture to the wall.
At a May 2000 VA joints examination, the veteran complained
of constant, mild to moderate aching pain across the top of
his left shoulder in the region of the AC joint and above the
anterior glenohumeral joint. He complained of increased pain
(at a level midway between moderate and severe) upon raising
his arm from 45 to 90 degrees. He also noted episodes of
painful clicking in the left shoulder when raising his arm to
90 degrees of abduction; he also had painful restricted
motion of the left shoulder. He denied any dislocation
episodes, swelling, or redness. He had normal left hand
sensation and grip strength. The veteran stated that he did
no activity with the shoulder which required pushing,
pulling, or raising the arm above shoulder level. On
examination the veteran removed his shirt and raised his arm
to 90 degrees of forward flexion in an easy fashion without
evident difficulty. Two "ancient" scars over the top and
anterior portion of the left shoulder were noted. The left
shoulder demonstrated flexion and abduction from 0 to 160
degrees. Internal and external rotation were to 90 degrees
with no pain. The veteran had pain in flexion and abduction
at 90 to 160 degrees. The examiner stated that motion above
160 degrees was resisted due to pain. There was no
tenderness on deep palpation about the left shoulder and no
evidence of any wasting of the deltoid muscle. X-rays
revealed a resection of the distal 25% of the clavicle
including the acromioclavicular joint; there was some small
soft tissue calcifications adjacent to the glenoid. The
glenohumeral joint was reduced and there was no evidence of
fracturing of the humeral head or glenoid. Osteoarthritis or
osteoporosis were not found. The diagnosis was status post
surgery to the glenohumeral joint and resection of the distal
clavicle and acromioclavicular joint of the left shoulder
with persistent painful limited motion involving abduction
and forward flexion. The examiner noted that the veteran's
left shoulder condition was stable. He further stated that
the veteran was unable to do work activities with the left
shoulder above 90 degrees of flexion.
A March 2001 MRI of the left shoulder revealed post-operative
changes of probable acromioplasty and possible rotator cuff
tear. Mildly heterogenous hyperintensity within the
supraspinatus tendon with no evidence of full thickness tear
was also noted.
At his April 2001 Board hearing, the veteran testified that
he had continuos left shoulder pain. He stated that his
shoulder would "pop" if he lifted his arm in the wrong
position. He also reported that he had daily muscle spasms
in his left shoulder. The veteran stated that he had to take
off his shirt with only his right hand. The veteran also
stated that he had a tingling sensation in his fingers. The
veteran had not undergone any left shoulder surgery since
active duty.
The veteran has been assigned a 10 percent rating for his
left shoulder disability under the provisions of 38 C.F.R. §
4.71(a), Diagnostic Code 5203. Under this diagnostic code, a
10 percent rating is granted for malunion or nonunion without
loose movement; a 20 percent rating is granted for nonunion
with loose movement or for dislocation.
Noting that the record appears to shows evidence of arthritis
confirmed by X-ray findings, the Board observes that the
provisions of Diagnostic Code 5003 provides for evaluation by
limitation of motion. Under Diagnostic Code 5201, a 20
percent rating is assigned if there is limitation of motion
in the minor arm to a point midway between the side and
shoulder level. A 30 percent rating is assignable for the
veteran's left shoulder disability if the evidence shows that
there is limitation of motion of the left shoulder to a point
25 degrees from the side.
The Board acknowledges and finds credible the veteran's
assertions regarding increased left shoulder pain with use.
Clinical examination has confirmed that certain movements
also produced pain. Additional functional loss due to pain,
fatigue, weakened movement and incoordination, including
during flare-ups, must also be considered. See 38 C.F.R. §
4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995).
Given the additional pain and discomfort on use, and the fact
that any arm movement at or above the shoulder level causes
pain, an increased rating of 20 percent may be granted under
Diagnostic Code 5201 for functional limitation of motion at
the shoulder level. However, as the evidence does not show
that there is limitation of motion of the left shoulder to a
point 25 degrees from the side, a rating in excess of 20
percent under Diagnostic Code 5201 is not warranted.
As noted, the veteran had been rated under Diagnostic Code
5203. However, a 20 percent evaluation is the highest
available under Diagnostic Code and therefore application of
Diagnostic Code 5203 would be of no benefit to the veteran.
The veteran's representative has indicated that the veteran
should be entitled to a higher evaluation under the
provisions of Diagnostic Code 5202. Diagnostic Code 5202
provides a 20 percent evaluation where there is recurrent
dislocation of the minor humerus at the scapulohumeral joint
with frequent episodes and guarding of all arm movements.
The next higher evaluation, 40 percent, requires fibrous
union of the minor humerus. However, the medical evidence
does not show that fibrous union of the humerus has been met
or approximated.
The Board has considered the possibility of a separate
evaluations for left shoulder scars. 38 C.F.R. § 4.118,
Diagnostic Code 7804. However, the medical evidence reflects
that the veteran's scars are not tender.
The potential application of various provisions of Title 38
of the Code of Federal Regulations have been considered
whether or not they were raised by the veteran as required by
the holding of the United States Court of Appeals for
Veterans Claims in Schafrath v. Derwinski, 1 Vet. App. 589,
593 (1991), including the provisions of 38 C.F.R.
§ 3.321(b)(1). The Board finds that, in this case, the
disability picture is not so exceptional or unusual as to
warrant a referral for an evaluation on an extraschedular
basis. It has not been shown that the veteran's left
shoulder disability resulted in frequent hospitalizations or
caused a marked interference in the veteran's employment.
The Board is therefore not required to refer this matter to
the RO for the procedural actions outlined in 38 C.F.R.
§ 3.321(b)(1). See Bagwell v. Brown, 9 Vet. App. 337 (1996);
Shipwash v. Brown, 8 Vet. App. 218, 227 (1995).
In sum, the Board concludes that entitlement to a 20 percent
rating for the veteran's left shoulder disability is
warranted. In making this determination the Board has
considered the provisions of 38 U.S.C.A. § 5107(b) (West
1991) and the Veterans Claims Assistance Act of 2000, Pub. L.
No. 106-475, § 4, 114 Stat. 2096, 2098-99 (2000) (to be
codified at 38 U.S.C. § 5107).
II. Whether new and material evidence has been submitted to
reopen a claim for entitlement to service connection for a
left ankle disability.
The veteran's claim of entitlement service connection for a
left ankle disability was denied in October 1996. The
veteran did not initiate an appeal from that determination,
and that determination became final. 38 U.S.C.A. § 7105(c).
A claim which is the subject of a prior final decision may be
reopened if new and material evidence is presented or
secured. 38 U.S.C.A. § 5108. The veteran attempted to
reopen his left ankle disability claim (characterized as left
Achilles tendonitis), and the RO denied that request by
rating decision in August 1999. The present appeal ensued.
Evidence received since the October 1996 rating decision
includes an April 2001 statement from a private podiatrist.
The statement is clearly new; moreover, as the statement
appears to be a medical opinion regarding a relationship
between current left ankle disability and the veteran's
service, the Board views this new item of evidence as so
significant that it must be reviewed in order to fairly
decide the merits of the veteran's claim. In other words,
the Board finds that the evidence is new and material under
38 C.F.R. § 3.156.
ORDER
A 20 percent evaluation for service-connected status post
Mumford procedures, left shoulder, is granted.
New and material evidence has been received to reopen the
veteran's claim of entitlement to service connection for a
left ankle disability.
REMAND
As the Board has determined that the claim has been reopened,
the case must be returned to the RO to allow for a full
merits analysis. Bernard v. Brown, 4 Vet. App. 384 (1993).
Further, review of the veteran's claim under the VCAA is
required before the Board may proceed with appellate review.
See Karnas v. Derwinski, 1 Vet. App. 308 (1991). In this
regard, the Board finds that further development, in the form
of a VA examination and etiology opinion, is warranted.
Accordingly, the case is hereby REMANDED to the RO for the
following actions:
1. Any pertinent VA and private medical
records (not already of record) should be
obtained and associated with the claims
file.
2. The veteran should be scheduled for a
special VA examination to ascertain the
nature and etiology of his left ankle
disability. It is imperative that the
claims file be made available to the
examiner for review in connection with
the examination. Any medically indicated
special tests and studies should be
accomplished. After examining the
veteran and reviewing the claims file (to
include service medical records), as for
each such disability of the left ankle
diagnosed, the examiner should offer an
opinion as to whether it is at least as
likely as not that such disorder is
etiologically related to the veteran's
military service, including the right leg
injury that occurred in 1990. The
examiner should also offer an opinion as
to whether it is at least as likely as
not that a left ankle disability was
caused or aggravated by the veteran's
service-connected right leg disability.
A detailed rationale for all opinions
expressed should be furnished.
3. The RO should also review the claims
file and undertake any additional
assistance to the veteran required by the
Veterans Claims Assistance Act of 2000.
4. After completion of all required
actions, the RO should review the
expanded record and determine whether the
benefit sought can be granted. If the
issue remains denied, the veteran and his
representative should be furnished with a
supplemental statement of the case and be
afforded an opportunity to respond.
Thereafter, the case should be returned
to the Board for appellate review.
The purpose of this remand is to ensure compliance with the
Veterans Claims Assistance Act of 2000 and to clarify matters
of medical complexity. The veteran and his representative
have the right to submit additional evidence and argument in
connection with the matters remanded by the Board.
John E. Ormond, Jr.
Member, Board of Veterans' Appeals